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Wheels of justice grind to a halt

Details

Published on Thursday, 12 February 2009 03:47

To file a case in Kisii now would hardly be appealing. This is because the High Court diary in Kisii is already full and the judge can only book cases for next year.  Kisii-based lawyers like Wilfred Moseti Omariba are a disappointed lot.  Omariba recently went to the High Court registry in Kisii to file an application to evict somebody who unlawfully occupied his client’s land, but he left heartbroken.

"My client wanted to prepare the land in readiness for the planting season only to be told that the diary was full and that fresh cases could not be listed for hearing until 2010," Omariba laments. "This has rendered me and my colleagues literally jobless," he says. The Kisii High Court, which serves 11 districts, has only one judge, Justice Daniel K Musinga. It serves 11 subordinate courts of Kisii, Nyamira, Keroka, Ogembo, Kilgoris, Oyugis, Migori, Rongo, Ndhiwa, Homabay and Kehancha.

The High Court in Kisii serves a big population from South Nyanza and South Rift regions. Many land dispute cases, which are common in this region due to scarcity of land and high population, have been pending at the High Court for years.

Many murder cases are related to land disputes as families fight to get the highly valued resource. The number of killings in the region has been on the rise.  Omariba, like other lawyers, has complained of frustrations while others are contemplating quitting the profession. The Law Society of Kenya Nyanza South vice chairman Cyrus Minda says there is serious need for more judges in the region.

"The situation in Kisii is alarming because whenever we want to file even very urgent cases, we are told to wait for the 2010 diary which is yet to arrive," Minda says. However, LSK says the situation is not unique to Kisii only. "Most courts in the country have already closed their diaries for this year," says LSK chairman Okong’o O’Mogeni.

However, O’Mogeni says Kenyans should be patient for one more year. "We don’t want to push for appointment of more judges before a clear criteria is developed as recommended by the panel of eminent persons," he told CCI. "The Judiciary should be independent even financially and more funds should be availed to construct more courtrooms," he noted. Going by the number of cases he handles, the judge in Kisii is overworked and overwhelmed by the workload.

Last year, Justice Musinga spent most of the time hearing election petition cases. He concluded the Bomachoge poll petition by nullifying the election of assistant minister Joel Onyancha. This year he is expected to hear a poll petition against the election of assistant minister Omingo Magara.  For efficiency, the Kisii High Court requires not less than three judges. In a letter to Chief Justice Evan Gicheru, Omariba observes: "You have promised to send more judges here during your visits. What is holding you back and yet you were given the go ahead to hire more judges?"

The letter was copied to Prime Minister Raila Odinga and the 10 Gusii MPs. In the meantime, he wants the CJ to revive the Commissioner of Assize programme in order to ease the workload in Kisii. Omariba also wants Gicheru to do away with summer holidays and annual leave for judges.

Omariba says widows and widowers intending to file succession cases are the worst hit by the crisis. Gusii region is densely populated giving rise to serious land conflicts most of which lead to killings. The high number of murder cases in the region has been attributed to frustrations from the Judiciary making people resort to other means of justice. Kisii court executive officer Victor Ikocheli confirms that the High Court diary is full until November. "This means no new cases will be fixed for hearing in the high court until then," he said.

According to documents availed to CCI, as at January 30, there were 473 criminal appeal cases, 130 murder cases, 73 capital appeals, 58 miscellaneous criminal appeals, 17 cases for revision, 228 civil matters, 866 succession cases, 1,547 civil appeals and 754 miscellaneous applications totalling 5,148 cases pending hearing and determination. Justice Musinga is expected to listen to and determine all of them.

"This is very cumbersome and something needs to be done," Ikocheli said. "We have already been allocated land by the Kisii Municipal Council to construct a High Court. We have requested for funds and we are still waiting. Once the funds are allocated, we shall put up the High Court complete with two courtrooms and offices for paralegal officers," explained Ikocheli.

He further noted: "We also want to put up more court rooms because some magistrates listen to cases in their chambers." The public are locked out of hearings and only the accused people, prosecutors and lawyers are allowed in the chambers.

Out of the six magistrates in Kisii, only three have courtrooms that were put up in 1972. They have never been expanded despite the growing population. The courts also lack essential facilities like a library, toilets and water. Ikocheli says Kisii needs a minimum of eight magistrates and two judges.

Due to delays in handling of cases, the Kisii Prison is feeling the pinch. The officer in charge Patrick Aranduh has written to courts and probation officers in the region saying the high number of inmates was overstretching the holding capacity of the correction facility. "I’m requesting you to grant affordable bonds/bails to those who are in custody and other new cases that may merit," says part of his letter. "Those who have been convicted to serve custodial sentences and may find favour before your courts may as well be considered for probation sentences and affordable fines," Aranduh wrote.  "People are suffering because of the delay in hearing of their cases. Others are suffering in remand prison because their appeals have been pending for a very long time," says Minda.